Other November issues face the voters

With three constitutional amendments on the ballot, there’s more to think about than personalities

By Brad Cook

Published: October 19, 2012

In addition to all of the personality contests, from president to county commissioner, on the November ballot in New Hampshire, there will be three constitutional questions.

Under Question 3, voters will be asked whether to hold a constitutional convention, and if a majority vote in the affirmative, delegates shall be chosen at the next regular general election, “or at such earlier time as the Legislature may provide.”

Given the debate about executive power, four-year terms for governor, the power of the Executive Council, the generally weak system of executive control, the size of the Legislature, the existence of county governments and all of the other structural matters that receive attention from time to time, voters might be well served if a constitutional convention to consider the constitution as a whole were held.

Question 1 is a constitutional amendment passed by the General Court during its 2012 session. Succinctly stated, this amendment would outlaw a general income tax or any special tax on the income of individuals, as opposed to corporations and business entities, which are deemed not to be “natural persons.”

This is lousy public policy. Whether or not anyone is in favor of an income tax for New Hampshire, to write into the Constitution a general prohibition ignores the possibility that the federal government’s attempt to balance its budget and reduce the deficit will reduce federal aid to towns, cities, school districts and the state to such a degree that additional revenue may be needed.

It also ignores the possible need at a look at the entire revenue structure of the state.

Thinking voters, whether they favor or oppose an income tax, should oppose this proposed amendment as tying the hand of future legislatures facing unknown sets of circumstances.

It is relatively amazing that at least three former governors support this amendment and the ideological right thinks it is a good idea. As conservatives, they should be wary of amending the Constitution. Those otherwise thoughtful people appear to be elevating politics over principle.

Finally, there’s Question 2, which is long and somewhat involved.

The courts currently make court rules. This constitutional amendment would allow the state legislature to make the rules if it so desired, unless the rules promulgated by it were themselves unconstitutional. This proposed amendment reverses a constitutional amendment of several years ago that gave that power to the courts.

Critics of this proposal say that separation of powers suggests that the court is the proper entity to make court rules. Proponents say that in the state and federal constitution, the legislature always had the right to set up the court system and structure and what it is not allowed to interfere with is actual decisions by judges on individual cases.

As is often the case, both sides have merit in their arguments and the voters will have to sort it out and decide where the power to make court rules lies.

This voter is voting “No” on that question.

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Elsewhere, there are a lot of individual and local matters on the ballot this year as there are many years.

In Manchester, for example, voters approved a charter commission to examine the city charter. Nine members are elected to the charter commission. In Manchester, where school funding is a major issue, proponents of the educational system have nominated a series of candidates. Some well-known conservative activists also have filed for office, and signs are beginning to appear in support of various candidates.

Unlike the legislature, however, charter commission members need to remember that their final product has to be reviewed by the voters as a whole and if they take any position that is too ideological or, frankly, quirky, the product will be rejected.

This writer was on the last two charter commissions in Manchester, the 1996 commission having revised city government fundamentally to eliminate the commission system and put in a modified “strong mayor system.” Several years later, attempts to revise the charter failed when the next charter commission came up with a number of frankly silly ideas and the voters wisely rejected it.

In any event, Manchester voters should pay attention to those they select for the charter commission as its work is important.

Brad Cook, a shareholder in the Manchester law firm of Sheehan Phinney Bass + Green, heads its government relations and estate planning groups. He also serves as secretary of the Business and Industry Association of New Hampshire.

This article appears in the October 19 2012 issue of New Hampshire Business Review